Citation Nr: 0609596
Decision Date: 04/03/06 Archive Date: 04/13/06
DOCKET NO. 04-24 086 ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to an increased rating for tinnitus, currently
evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Minnesota Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The veteran served on active duty from February 1970 to
September 1971, and from April 1985 to December 2001.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from an April 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Paul, Minnesota, which denied separate ratings for both
ears for bilateral tinnitus. The veteran appealed,
contending that he was entitled to separate ratings for both
ears; i.e., that he was entitled to a rating in excess of 10
percent for his service-connected tinnitus, which is how the
Board has characterized the issue on appeal.
The Board notes that by a January 2004 statement, the veteran
raised a claim of entitlement to an increased rating for his
service-connected bilateral pes planus, and that his
representative also addressed this claim in a December 2005
statement. As the documents assembled for the Board's review
does not reflect that this claim has been adjudicated below,
this issue is referred to the RO for appropriate action.
As an additional matter, the Board notes that the veteran had
also submitted a timely Notice of Disagreement to a July 2002
rating decision which, among other things, denied service
connection for a cervical spine disability. However, service
connection was subsequently established for this disability
by a November 2002 rating decision, which resolved the issue.
See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir.
1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).
Granted, he also submitted a timely Notice of Disagreement to
the initial noncompensable (zero percent) rating assigned for
this disability, but subsequently indicated in a May 2003
statement that he was satisfied with an April 2003 rating
decision and concurrent Statement of the Case (SOC) which
assigned a 10 percent rating effective January 1, 2002, and a
20 percent rating from March 7, 2003. Therefore, this issue
is not currently before the Board.
FINDINGS OF FACT
Prior to the promulgation of a decision in the appeal, the
Board received notification from the appellant, through his
authorized representative, that a withdrawal of this appeal
is requested.
CONCLUSION OF LAW
The criteria for withdrawal of a Substantive Appeal by the
appellant (or his or her representative) have been met.
38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R.
§§ 20.202, 20.204 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2005). Withdrawal may be
made by the appellant or by his or her authorized
representative. 38 C.F.R. § 20.204 (2005).
By a December 2005 statement submitted through his authorized
representative, the veteran reported that he wanted to
withdraw his appeal on the issue of entitlement to an
increased rating for his service-connected tinnitus. As
such, he has withdrawn this appeal and, hence, there remain
no allegations of errors of fact or law for appellate
consideration. Accordingly, the Board does not have
jurisdiction to review the appeal and it is dismissed.
ORDER
The appeal is dismissed.
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs